Juan Salazar-Noriega v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2023
• Docket: 21-70618
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN MIGUEL SALAZAR-NORIEGA, Nos. 21-70618, 22-160

Petitioner, Agency No. A200-242-324

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submission Deferred March 8, 2022** Submitted January 18, 2023 Pasadena, California

Before: FRIEDLAND and KOH, Circuit Judges, and KORMAN,*** District Judge.

Juan Miguel Salazar-Noriega (“Salazar”), a native and citizen of Mexico,

appeals from the Board of Immigration Appeals’ (“BIA”) decision affirming an

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of

removal under 8 U.S.C. § 1231(b)(3), protection under the Convention Against

Torture (“CAT”), cancellation of removal, and voluntary departure. Salazar also

appeals the BIA’s decision to decline to sua sponte reopen his immigration

proceedings. Having reviewed the relevant legal and constitutional questions de

novo and the agency’s factual findings for substantial evidence, see Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc), we deny

Salazar’s petition.

1. The agency adequately addressed Salazar’s claim that his opposition to

cartels qualified him for withholding of removal. Even if the IJ erred by not focusing

specifically on this argument, the BIA expressly rejected it, noting that the record

contained no evidence, aside from speculation, suggesting that Salazar held,

expressed, or would be viewed as holding political opinions or religious beliefs

opposed to cartels. Contrary to Salazar’s contention, the BIA may “conduct[] a de

novo review and conclude[] that [a petitioner] did not” provide “evidence sufficient

to establish” his claims. Singh v. Holder, 591 F.3d 1190, 1198 (9th Cir. 2010)

(quotation marks omitted); see also Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.

1995).

The BIA’s rejection of Salazar’s political opinion- and religious belief-based

opposition-to-cartels arguments also sufficed to reject his argument that he would

2 face persecution due to his membership in a social group consisting of Mexicans

opposed to cartels. In observing that the record lacked evidence supporting Salazar’s

religion and political opinion claims, the BIA effectively identified a fatal flaw with

his Mexicans-opposed-to-cartels social group claim: Salazar provided no

nonspeculative evidence that he would be identified as a member of such a group.

See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc).

2. The agency correctly concluded that Salazar’s alleged status as an

“individual[] returning to Mexico from the United States who [is] believed to be

wealthy” does not qualify him for withholding of removal. Barbosa v. Barr, 926

F.3d 1053, 1059–60 (9th Cir. 2019) (quotation marks and alterations omitted).

3. Salazar’s membership in his family also does not qualify him for

withholding of removal. As the agency rationally determined, Salazar’s evidence

does not demonstrate that he would be targeted for persecution because of his

familial ties. That evidentiary deficiency undermines Salazar’s claim. See Riera-

Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (“The lack of a nexus to a

protected ground is dispositive of . . . withholding of removal claims.”).1

4. The BIA did not err in adopting the IJ’s decision to deny Salazar CAT relief.

As the IJ found, Salazar “presented absolutely no evidence that anyone would be

1 As Salazar concedes, our rejection of all his arguments regarding his eligibility for withholding of removal means we have no occasion to disturb the agency’s denial of his asylum application.

3 interested in torturing him.” Salazar does not provide any argument to challenge that

conclusion, and his failure to “demonstrate that he would be subject to a

particularized threat of torture” is fatal to his claim. Lalayan v. Garland, 4 F.4th

822, 840 (9th Cir. 2021) (quotation marks omitted).

5. We have jurisdiction to review the agency’s cancellation of removal and

voluntary departure decisions for only legal or constitutional error. See 8 U.S.C.

§ 1252(a)(2)(B)(i), (D); Corro-Barragan v. Holder, 718 F.3d 1174, 1176–77

(9th Cir. 2013); Figueroa v. Mukasey, 543 F.3d 487, 495 (9th Cir. 2008). Salazar

fails to identify any potential legal error in the agency’s voluntary departure

decision, and we thus dismiss that aspect of his petition.

With respect to cancellation of removal, Salazar argues that the BIA violated

his due process rights by failing to consider an argument that he raised for the first

time in his administrative appeal—that his two-year old daughter, who would

necessarily accompany him back to Mexico, would suffer “exceptional and

extremely unusual hardship” there because of her gender. 8 U.S.C.

§ 1229b(b)(1)(D). We assume for the sake of this argument that a petitioner has a

due process right to have the BIA consider an argument raised before it in the first

instance. Cf. Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“IJs and

the BIA are not free to ignore arguments raised by a petitioner.”).

4 Yet Salazar cannot, as he must, “show[] that the” BIA’s failure do to so here

“potentially affected the outcome of the immigration proceeding” and thus “caused

him prejudice.” Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018).

Salazar does not point to any authority suggesting that the agency would accept a

hardship claim as broad as the one he advanced—that all women in Mexico

experience “exceptional and extremely unusual hardship.” 8 U.S.C.

§ 1229b(b)(1)(D). Moreover, some of the allegedly most compelling country

conditions evidence upon which Salazar relied does not appear in subsequent

country reports in the record, and those more recent reports even suggest that

conditions for women in Mexico are improving.

6. We have jurisdiction to review the BIA’s refusal to sua sponte reopen

immigration proceedings “only for ‘legal or constitutional error.’” Lona v. Barr, 958

F.3d 1225, 1229 (9th Cir. 2020) (quoting Bonilla v. Lynch, 840 F.3d 575, 588 (9th

Cir. 2016)). In this case, the BIA did not commit any such error when it rejected

Salazar’s argument that a Notice to Appear that does not specify the time and place

of an alien’s initial removal hearing deprives an IJ of jurisdiction over the removal

proceedings. See United States v. Bastide-Hernandez, 39 F.4th 1187, 1190–94 (9th

Cir. 2022) (en banc). To the extent Salazar now argues that the absence of time and

place of hearing on his Notice to Appear constitutes a “prejudicial claims processing

violation,” he failed to timely raise that objection during the proceedings before the

5 IJ, in which he attended his hearings and was represented by counsel. Manrique v.

United States, 137 S. Ct. 1266, 1272 (2017) (explaining that “mandatory claim-

processing rules may be forfeited” when “the party asserting the rule waits too long

to raise the point” (cleaned up)).

The temporary stay of removal remains in place until issuance of the mandate.

The motion for a stay of removal filed in 22-160 (Docket Entry No. 2) is

otherwise denied as moot.

DISMISSED IN PART AND DENIED IN PART.